Super-Max Offshore Holdings & Anor v Malhotra

In sentencing for contempt of court, custody is a last resort. The court must assess the substance and seriousness of the contempts rather than treating multiple findings as automatically multiplying their gravity. Relevant factors include prejudice, deliberateness, culpability, pressure, responsibility for the breach, appreciation of seriousness, co-operation, admissions, apology, remorse and reasonable excuse. Deliberate breaches of court orders, false evidence, interference with witnesses and conduct undermining the administration of justice may justify consecutive custodial sentences. The committal jurisdiction is primarily punitive, although the court must consider totality and the statutory maximum. Delay does not necessarily make contempt stale or infringe Article 6, particularly where the delay is not attributable to the applicant and the dispute remains live.

The claimants applied for committal orders arising from the defendant’s breaches of court orders, false statements, communications intended to disrupt the claimants’ management, abusive communications, and interference with witnesses. In an earlier judgment, the court found the defendant in contempt on 31 particularised grounds across four applications.

This hearing concerned sentence, the effect of delay, prejudice, the impact of the COVID-19 pandemic, permission and stay pending appeal, and costs. The central questions were how the contempts should be assessed, whether custody was justified, and what consequential orders should be made.

1. Delay and prejudice. The contempts, occurring between December 2016 and March 2018, were not rendered stale by the subsequent delay. The claimants were not responsible for the material periods of delay, and the defendant could not complain of the passage of time. There was no breach of Article 6 of the ECHR. The relationship remained live because related disputes continued in other jurisdictions. The claimants had suffered substantial prejudice through the continuing breaches, the need to disprove false statements, the effect on witnesses and the distress caused by the communications.
2. Applicable sentencing principles. A custodial sentence is a last resort. The number of contempts does not itself exponentially increase their seriousness; the court must assess their substance. The court adopted and applied the factors identified in Crystal Mews Limited v Metterick [2006] EWHC 3087 (Ch), as supplemented in Asia Islamic Trade Finance Fund Ltd v Drum Risk Management Ltd [2015] EWHC 3748 (Comm) and Aspect Capital Limited v Christensen [2010] EWHC 744 (Ch). Particular weight was given to appreciation of seriousness, co-operation, admissions, apology, remorse, responsibility and frankness.
3. Seriousness and sentence. The deliberate breach of seven continuing court orders was serious and premeditated. Protection of witnesses was of vital importance. The court agreed with AG v Butterworth [1963] 1 QB 696 and Chapman v Honig [1963] 2 QB 502 on that principle. The committal jurisdiction is primarily punitive, as stated in JSC BTA Bank v Solodchenko (No 2) [2012] 1 WLR 350.
4. The five categories of contempt warranted sentences of four months, four months consecutive, two and four months concurrent with each other but consecutive to the first two categories, and six months consecutive. Applying totality and the 24-month maximum under the Contempt of Court Act 1981, the aggregate sentence was reduced to 15 months’ imprisonment.
5. The sentence was stayed pending appeal. Permission on two ancillary applications was adjourned for consideration by the Full Court. The claimants were awarded 90 per cent of their costs on the indemnity basis, with an interim payment of £1.3 million into court pending the appeal.

The judgment records an earlier judgment of Popplewell J and criticism by Leggatt LJ, but does not give the citations for those decisions. The defendant’s main appeal was pending before the Court of Appeal.